Information for Business

To eliminate the risks, costs, and societal burden of drug related problems in the workplace through education, motivation, and support of orange county employers “fight to win the war on drugs.”

What businesses can do

1. Create, write and distribute your company’s position on drugs and alcohol at work. (write a drug policy!)

2. Communicate this message in positive manner to all employees. stress safety, their well-being, and the overall financial effect on the company.

3. Open the lines of communication from your employees up to management so they will feel comfortable discussing their own or a co-worker’s problems.

4. Initiate pre-employment (post-offer) drug testing.

5. Initiate an employee assistance program where employees with drug/alcohol related problems may seek help.

War on drugs

The goal of the “Drug Use Is Life Abuse” organization is to work within the community – with groups and individuals – to eliminate the demand for drugs. The ideas listed below are meant to stimulate discussion on what can be done in the workplace to reinforce the message that “Drug Use Is Life Abuse”‘ and to encourage drug-free lifestyles. If there is anything we can do to support your efforts, please call Ted Grumkoski at 714-567-3900.

1. Use the “Drug Use Is Life Abuse” logo on:

stationery

outgoing mail

business forms/billing statements

employee newsletters and bulletins

newspaper ads/collateral materials (e.g., paper bags, stickers, etc.)

Our logo sheet and Pitney-Bowes meter plate information are available by calling 714-647-4133.

2. Display the “Drug Use Is Life Abuse” bumper sticker on organizational vehicles and employees’ cars. (Stickers are available free-of-charge from “Drug Use Is Life Abuse.”)

3. Have employees sign anti-drug pledge cards. (These are available free-of-charge from “Drug Use Is Life Abuse.”)

7. Participate in Red Ribbon Week activities. (Red Ribbon Week is a nationwide effort to increase awareness of the drug issues and problems in our communities. It takes place in October of every year.)

8. Hold a “Drug Use Is Life abuse” Week/Month at your workplace to announce a new drug prevention policy, focus attention on drug abuse issues, and/or to kick off a new program, such as an employee assistance program. Distribute “Drug Use Is Life Abuse” bumper stickers, have employees sign anti-drug pledge cards, etc.

What Not To Do

The 11 most common employer mistakes in addressing drug abuse:

1. Don’t enforce your company policy inconsistently.
To do so is an invitation to litigation. Like most areas of labor and employment law, employers have great latitude in what their policies on drug abuse are going to be. However, once that policy is adopted, an employer must adhere to it. This means taking the same action in response to a policy violation for senior or highly valued employees as for newly hired or very marginal employees. If you repeatedly treat similar violations of company policy differently, ultimately you will be sued and you will lose.

2. Don’t act without the full support of top management.
You need a commitment from the very top of the company to stand by your policy and its consequences. Senior management must not only be informed, it must be involved. Without full and consistent support from the company’s leaders, a company’s program will be seriously undermined.

3. Don’t implement a “fitness for duty” policy.
When an employer prohibits drug use that renders an employee “unfit for duty” or “under the influence,” that employer is needlessly backing itself into a corner. Performance related standards are subject to interpretation and litigation – and therefore place a much higher burden of proof on the employer to demonstrate a sufficient level of employee impairment. Forget performance standards and such limiting language. Prohibit illicit drug use. period! You should not care if the drug use took place on break time in the company parking lot, before work outside the factory gates, or the night before at the employee’s home. A confirmed “positive” drug test demonstrates the presence of illicit drugs and that in and of itself should be a violation of company policy sufficient to trigger adverse employment action. This standard (a flat prohibition of illicit drug use) is much clearer, easier to satisfy and effective. the legal burden is simple: that the testing procedures were reliable; not that this individual at that moment in that job in the judgment of that supervisor was unable to work at a satisfactory level of performance.

4. Don’t report drug test widely.
Only those with a ‘need to know” should be informed of the results of an employee’s or job applicant’s drug test. More widely disseminated test results may trigger actions against the employer for, among other claims, defamation, invasion of privacy, intentional infliction of emotional distress, and/or negligent infliction of emotional distress. Legal considerations aside, it simply is good employee relations to strive to minimize any unwarranted intrusion into employees’ privacy. Employers should stress to management and supervisors the importance of maintaining worker confidentiality.

6. Don’t implement a verbal policy.
Your company policy should be written. Never take enforcement action based on spoken or “understood” rules. . . the legal consequences can be highly detrimental. In all cases, your company’s policy should be clear, firm, and in writing, and well communicated to employees. It is critical that the policy include the consequences for employees’ violation of the policy and, where applicable, the consequences for employees’ refusal to be tested.

7. Don’t use unaccredited laboratories.
You want your drug testing program to be fair, accurate and effective. You also want it to stand up in court or in arbitrations. To accomplish this, use top professionals to do your testing. Their safeguards and protocols withstand adversary scrutiny. Two valuable measures of laboratory reliability are accreditation by the National Institute On Drug Abuse and/or the College of American Pathologists. This is not an area to count pennies. . . the relatively small amount you may save may cost you the credibility of your entire program.

8. Don’t address drug abuse without a parallel program for alcohol abuse.
Alcohol remains the most commonly abused drug in America. . . and in American workplaces. The virtually identical psychology of addiction, the comparable safety risks and decreased productivity, and the increasing incidence of poly-drug abuse (alcohol and illicit drugs) make alcohol a critical threat to employers and employees and warrants parallel company programs to address alcohol and drug problems. You do not have a drug-free workplace if you tolerate alcohol use.

9. Don’t concentrate on any one class of employees (especially protected classes).
Employers must be careful not to discriminate in the application of their policies. To concentrate testing, searches or other enforcement action on any one class of employees – even unintentionally – can create morale problems, charges of favoritism and discrimination, and legal actions particularly if one class of employees is disproportionately Black or female or otherwise considered a “protected class” under our equal employment laws. The best enforcement policy is applied equally to all employees, including top management.

10. Don’t confront suspected drug users one-on-one.
Supervisors and managers should be cautioned never to take action against someone suspected of dealing or using drugs on the job, or “under the influence.” First of all, to do that can be physically dangerous. Secondly, there is substantial value to having a reliable witness or witnesses present in the event of a subsequent legal challenge.

11. Don’t send impaired employees home behind the steering wheel of a car..
Someone on the job who is suspected of being drunk or stoned or both should not be operating a 3,000 pound vehicle. By the same token, to restrain the employee from leaving – taking him or her in custody – could subject the employer to claims of false imprisonment. What should you do? After appropriate actions under the company policy (drug test, conditional suspension) the employer should have a supervisor drive him or her home.

Information provided courtesy of Mark A. deBernardo, Executive Director of the Institute For A Drug-Free Workplace.

Drug and alcohol policy

1. Purpose
Alcohol and drug abuse ranks as one of the major health problems in the United States, Our employees are our most valuable resource, and their safety and health is of paramount concern. We are committed to providing a safe working environment to protect our employees and others; to provide the highest level of service; and to minimize the risk of accidents and injuries.

2. General Policy
Each “Drug Use Is Life Abuse” employee has a responsibility to co-workers and the public to deliver services in a safe and conscientious manner. Continuing research and practical experience have proven that even limited quantities of narcotics, abused prescription drugs or alcohol can impair your reflexes and judgment. This impairment, even when not readily apparent, can have catastrophic results, as in the case of employees engaged in emergency services or operating dangerous equipment. For these reasons, we have adopted a policy that all employees must report to work completely free from the presence of drugs and the effects of alcohol.

3. Drug Use / Distribution / Possession / Impairment
All employees are prohibited from manufacturing, cultivating, distributing, dispensing, possessing or using illegal drugs or other unauthorized or mind altering or intoxicating substances while on “Drug Use Is Life Abuse” property (including parking areas and grounds), or while otherwise performing “Drug Use Is Life Abuse” duties away from “Drug Use Is Life Abuse.” Included within this prohibition are lawful controlled substances which have been illegally or improperly obtained.

Employees are also prohibited from having any such illegal or unauthorized controlled substances in their systems while at work, and from having excessive amounts of otherwise lawful controlled substances in their systems. This policy does not apply to the authorized dispensation, distribution or possession of legal drugs where such activity is a necessary part of an employee’s assigned duties.

4. Alcohol Use / Distribution / Possession/ Impairment
All employees are prohibited from distributing, dispensing, possessing, using or having alcohol in their system while at work.

5. Off-duty conduct
Off-duty possession, use, sale or purchase of mind-altering substances and off-premises alcohol abuse may reflect unfavorably on the company and is also prohibited.

6. Prescription drugs
The proper use of medication prescribed by your physician is not prohibited; however, we do prohibit the misuse of prescribed medication. Employee’s drugs may affect their job performance, such as by causing dizziness or drowsiness. In addition, employees can report the use of prescription or nonprescription drugs which may affect drug tests by completing a written consent form. It is the employee’s responsibility to determine from his/ her physician whether a prescribed drug may impair job performance.

7. Notification of impairment
It shall be the responsibility of each employee who observes or has knowledge of another employee in a condition which impairs the employee to perform their job duties, or who presents a hazard to the safety and welfare of others, or is otherwise in violation of this policy, to promptly report that fact to their immediate supervisor.

8. Who is tested
“Drug Use Is Life Abuse” shall conduct drug tests in the following circumstances:

Application for Employment

Job applicants must submit to a drug test. Refusal to submit or a positive confirmed drug test may be used as a basis for refusal to hire the applicants

Reasonable Suspicion

Employees may be required to submit to drug/alcohol screening whenever “Drug Use Is Life Abuse” supervision has a reasonable suspicion that they have violated any of the rules set forth in this policy. Reasonable suspicion may arise from, among other factors, supervisory observation, co-worker reports or complaints, performance decline, attendance or behavioral changes, or involvement in a workplace or vehicular accident indicating a possible error in judgment or negligence.

9. Discipline
Violation of this policy or any of its provisions may result in discipline up to and including discharge.

10. Enforcement policy
In order to enforce this policy and procedures, “Drug Use Is Life Abuse” reserves the right to investigate potential violations and require personnel to undergo substance screening, including urinalysis, blood tests or other appropriate tests and, where appropriate, searches of all areas of the company and company grounds, including, but not limited to work areas, personal articles, lockers, vehicles, etc. Employees will be subject to discipline up to and including discharge for refusing to cooperate with searches or investigations, to submit to screening or for failing to execute consent forms when required by supervision.

11. Investigations / Searches
Where a manager or supervisor has reasonable suspicion that an employee has violated the substance abuse policy, the supervisor may inspect vehicles, lockers, work areas, desks, purses, briefcases, tool boxes and other locations or belongings without prior notice, in order to ensure a work environment free of prohibited substances. An employee may be asked to be present and remove a personal lock. Where the employee is not present or refuses to remove a personal lock, “Drug Use Is Life Abuse”‘ may do so for him or her, and compensate the employee for the lock. Any such searches will be coordinated with a representative of management.

12. Employee assistance
The company expects employees who suspect they have an alcohol or drug problem to seek treatment. The company will help employees who abuse alcohol or drugs by providing a referral to an appropriate professional organization. However, it is the responsibility of the employee to seek and accept assistance before drug and alcohol problems lead to disciplinary action, including termination. Failure to enter, remain or successfully complete a prescribed treatment program may result in termination of employment. Strict confidentiality of records and information will be maintained.

Entrance into a treatment program does not provide exceptions to the company’s policy regarding an employee’s performance, and participation will not prevent the company from administering discipline for violation of its policies or relieve the employee of Ws/her responsibility to perform his/her job in a satisfactory, safe, and efficient manner

13. Confirmation testing
All urinalysis drug tests will utilize an initial immunoassay methodology or an equivalent. All positive results shall be confirmed by a licensed laboratory using gas chromatography/mass spectrometry (GC/MS) or an equivalent.

14. What happens when an employee tests positive for prohibited substances?
All employees who test positive in a confirmed substance test will be subject to discipline up to and including discharge,

Employees who are not immediately terminated for testing positive or for some other violation of the policy may, at the sole discretion of “Drug Use Is Life abuse” be placed on probation and required to execute an agreement acknowledging:

a. That they tested positive or otherwise violated the policy; and,

b. That in exchange for “Drug Use Is Life abuse” not terminating them for this instance of testing positive or otherwise violating the policy, they agree to undergo rehabilitation, counseling or other activities prescribed by “Drug Use Is Life Abuse” coordinating physician in conjunction with management; to undergo periodic unannounced screening for a set period; and be subject to termination for any future violation of the policy.

15. Returning / Continuing To Work
Employees who test positive, admit to drug or alcohol use or related misconduct, or voluntarily seek assistance, and are not terminated, will not be returned to work or continue working until they have been evaluated by a “Drug Use Is Life Abuse” coordinating physician in conjunction with the administration to determine if they can safely return to work.

Employees acknowledgement

I have fully read and understand the “Drug Use Is Life abuse” Policy Against Drugs and Alcohol, and I agree to abide by its terms as a condition of my employment.

This agreement does not alter my current status as an “At-Will” employee. I understand that I have the right to terminate my employment at any time, with or without cause or notice, and the company has a similar right. I further understand that my status as an “At-Will” employee may not be changed except in writing signed by the President of the company.

PRINT FULL NAME ___________________________

SIGNED ____________________________________

DATE ______________________________________

(RETAIN IN EMPLOYEE PERSONNEL FILE)

The legality of drug and alcohol testing

A. Pre-Employment Testing
The current state of the law in California is that pre-employment drug/ alcohol testing does not violate the California constitutional right to privacy as long as procedural safeguards are in place to protect the privacy of the applicant. However, this rule may change in the future. See Wilkinson v. Times Mirror Corl2. (1989) 215 Cal.App.3d 1034, and Soroka v. Dayton Hudson (1991) 91 Daily Journal D.A.R. 13204,

a. Safety is a compelling interest, but deterrence, efficiency, competence, creating a drug-free environment. and ensuring public confidence are not. LL at 632.
b. Whether a particular position is safety-sensitive is a question for the court to decide, not the jury. at 630.

2. Violation of Public Policy
An employee was terminated for refusing to take a random drug test. The court held that the plaintiff had a valid cause of action for wrongful termination in violation of public policy. The court found that the public has an interest in maintaining the privacy rights of the citizenry and that this interest is impinged upon by random drug testing. See Semore v. Pool (1990) 217 Cal.App.3d 712.

3. Satisfying the Compelling Interest Standard

a. Random Testing Prohibited
The compelling interest standard applied in Luck and Semore forbids random drug testing.
b. Reasonable Suspicion Testing Allowed
Employers may require a drug/alcohol test when they have a reasonable suspicion that the employee is using drugs or alcohol or acting in an impaired condition. What constitutes a reasonable suspicion in California is still undetermined.
c. Post-Accident Testing
Accidents on the job may be the result of impairment due to drug or alcohol use. If the circumstances surrounding an accident indicate that the employee was impaired, the employer may have adequate reasonable suspicion to test.
d. Tests in Conjunction with Physical Examinations
Drug/alcohol tests are often given in conjunction with pre employment or post-employment routine physical examinations. The Americans With Disabilities Act (ADA) does not prohibit drug testing. However, it does place restrictions on drug testing which is part of the physical examination. Under the ADA pre-employment physical examinations may only be given after a conditional offer of employment is made. Physical examinations of current employees must be based on business necessity and job relatedness.

C. Rehabilitation
1. Reasonable Accommodation
Labor code Section 1025 provides that employers regularly employing 25 or more employees must reasonably accommodate employees who want to enroll in an alcohol or drug rehabilitation program, provided that the accommodation does not impose an undue hardship on the employer. Generally, this means that an employer must provide time off, without pay.

2. Drug and Alcohol Users

a. Persons who are currently using illegal drugs or who are abusing prescription drugs are not protected under the ADA effect on their job performance.
b. Rehabilitated drug addicts are protected under the ADA because they have a record of disability.
c. Alcoholics are considered disabled under the ADA. However, an alcoholic may be required to meet an employer’s regular employment standards and disciplined if he/she fails to do so.

Information provided courtesy of Rob Bekken of Fisher and Phillips. For more information, call (714) 567-3900.

Employee assistance programs

What is an employee assistance program?
Very simply, it is just what it sounds like – assistance to employees, This program provides confidential professional assistance to help employees and their families resolve problems that affect their personal lives or job performance. Besides being confidential, the program is voluntary – it is designed to allow the employee or family to seek help on their own.

Here’s how the program works:
The request for help may be initiated by the employee or a family member.

Confidentiality is assured. The discussion of the problem is strictly between you and the counselor. Neither your employer nor your co-workers will have any knowledge of your request for help. If the need is indicated, the counselor may encourage other members of your family to participate in the program.

Your supervisor may encourage the use of the Employee Assistance Program when a performance problem occurs in order to determine if personal problems may be interfering with your job. The program is voluntary. However, if the offer of help is refused and job performance or attendance problems continue, regular corrective procedures may apply.

Why is a program like this needed?
Progressive organizations provide Employee Assistance Programs to their employees because it’s good business and because they care about their employees.

Each of us, regardless of our position in the organization, face a variety of problems in our daily lives. Usually, we can work them out. Sometimes our problems become too much for us to handle and they affect our personal happiness, our family relations, our performance at work, and even our health. When this occurs, we often need professional help in resolving them. Without proper attention, these problems usually become worse and the consequences are often unpleasant and expensive.

With what kinds of problems will the employee assistance program deal?
The program deals with human problems – the kinds that affect an employee’s personal well-being and 1-his/her ability to perform on the job. These problems may include marital or family difficulties, financial or legal problems, work related problems, or problems caused by alcohol or drug abuse.

But aren’t these private problems?
(What right does the employer have to interfere with an employee’s personal life?)

Certainly these are personal problems – that is until they begin to have an affect on the employee’s performance on the job.

Many times problems begin to affect the morale of fellow workers and the overall effectiveness of the organization. The intent of the Employee Assistance Program is to prevent this from happening. It’s an offer of a helping hand – not an attempt to pry or punish. The program is strictly confidential and voluntary. The employer most often sponsors the Employee Assistance Program but does not get involved in the counseling process.

What about family problems?
(Does the Employee Assistance Program apply to the spouse or family?)
Yes! Since an employee’s personal well-being and work performance can be affected by the problems of a spouse or a dependent, this program is also made available to the family. Hopefully, family problems can be corrected before they affect the employee’s performance at work.

Who will pay for the cost of this counseling or other professional services that might be necessary?
The initial problem assessment and referral services are free of cost to the employee and their family members in most situations. If professional counseling and therapy is needed, the employee’s regular health insurance and/or other benefits will be considered. If services that are not covered by insurance are necessary, the counselor will try to help the employee minimize the cost. These costs will be the employee’s responsibility, but are available based on the individual’s ability to pay.

Does this mean that our organization has an unusual number of employees problems?
Not at all! It simply means that your organization cares about its employees. The organization is more than buildings and equipment. When an employee has problems, it is simply good business for the employer to offer help in resolving them as early as possible.